At the November term, 1909, of the circuit court of De Soto county, the appellant, J. M. Middleton, was tried, convicted, and sentenced to be imprisoned in the county jail for a term of six months and fined $300 for an assault and battery upon one Matthew Gardner, from which judgment and sentence he prosecutes this appeal.

The assignments of error are as follows, to1 wit: “First, the *279court below erred in modifying instructions Nos. 1 and 7, and not granting same as asked by defendant; second, the verdict of the jury was contrary to the law and tbe evidence and instructions of tbe court; third, the court erred in overruling defendant’s motion for a new trial.”

We have examined the record carefully, and it fails to show that instructions 1 and 7 were modified. This court does not know that any modification was made in these instructions by the trial court, except from the statement made in appellant’s brief. The record fails to disclose that the instructions complained of by appellant were ever asked in any other form than as the record shows they were given. That point cannot be raised here for the first time. The law of the case as presented by the record before us is correctly given.

Appellant further complains that the verdict is contrary to the law and the evidence. We think not. It shows that an unwarranted and brutal assault was made upon a helpless and weak-minded man, without any cause or justification whatever.

The disposition of this case recommended by the commissioner is approved, for reasons stated in opinion.

Affirmed.